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Court of AppealDismissedCivil Application 6 of 2021· [2022] KECA 988 (KLR)

Ali (as personal representative of the late Mehboob Mohamed Abdul Gafoor Mohamed Mullah also known as Mehboob Mohamed Abdulgafoor and Mehboob Mullah) v Vescon Properties Limited & another

Court of Appeal
23 September 2022
2,236 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant couldn't explain a two-year delay or blame her lawyer entirely.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa (S. Gatembu Kairu, JA) on an application under Rule 4 of the Court of Appeal Rules, 2010 for extension of time to file a notice of appeal against a ruling of the Environment and Land Court (Matheka, J.) of 1st November 2018 dismissing the applicant's suit over land known as Sub-division Number 3427, Section III, MN, for want of prosecution. The applicant, personal representative of a deceased registered owner, alleged the property was fraudulently transferred after his death. Instead of appealing the 2018 dismissal, she sought reinstatement, which was refused on 28th November 2019 on functus officio grounds; although granted leave to appeal that refusal, she did not appeal, instead applying to the ELC for extension of time, which was refused on 16th November 2020. The present application followed on 19th January 2021. Applying the Fakir Mohamed principles and the Supreme Court's Salat decision, the court held that extension of time is an equitable remedy for a deserving party, that the applicant offered no explanation for over a year of inactivity, and that blame cannot simply be heaped on former advocates since a client must pursue the matter. The application was dismissed with costs to the 1st respondent only.

Key legal issues

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01

Whether the delay of over two years in seeking to appeal the dismissal of the suit was adequately explained

Holding

The delay was not explained; the applicant's misstep in seeking reinstatement instead of appealing, and her inactivity thereafter, did not justify extension of time

Reasoning

The court traced the chronology: dismissal on 1 November 2018; reinstatement application dismissed 28 November 2019 with leave to appeal granted but not exercised; a further extension application dismissed 16 November 2020; the present application filed 19 January 2021. No explanation was offered for the inactivity of over one year, nor for the two-month delay in filing the present application.

p. 3
02

Whether blame can be placed solely on the applicant's former advocates

Holding

No; the client has a duty to pursue the matter and must bear the consequences of an agent's inaction

Reasoning

Relying on Rajesh Rughani and Bains Construction, the court held that accusing an advocate of inaction is not an excusable mistake meriting sympathy, and a principal who vests authority in an agent who fails to perform must bear the consequences.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy, not a right; the applicant bears the burden of explaining delay to the satisfaction of the court
  • A client cannot simply heap all blame on an advocate for delay; the client has a duty to follow up on the matter

Court orders

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  1. 1.The application dated 14th December 2020 and lodged on 19th January 2021 is dismissed with costs to the 1st respondent only

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4

Cases cited (9)

  • Edward Njane Nganga & another vs. Damaris Wanjiku Kamau & another
    [2016] eKLR

    Court has unfettered discretion to do justice in extension of time applications

  • Fakir Mohamed vs. Joseph Mugambi & 2 others
    [2005] eKLR

    Principles governing extension of time under Rule 4

  • Mutiso vs. Mwangi
    Civil Appl. NAI. 255 of 1997 (UR)

    Relevant factors in extension of time

  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486

    Relevant factors in extension of time

  • Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (UR)

    Relevant factors in extension of time

  • Murai v Wainaina (No 4)
    [1982] KLR 38

    Relevant factors in extension of time

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR

    Extension of time is an equitable remedy; burden on applicant to explain delay

  • Rajesh Rughani vs. Fifty Investment Ltd. & Another
    [2005] eKLR

    Client cannot simply blame advocate; duty to pursue matter

  • Bains Construction Co. Ltd. vs. John Mzare Ogowe
    (2011) eKLR

    Principal bears consequences of agent counsel's non-performance

On appeal from
Environment and Land Court at Mombasa
ELC Case No. 171 of 2014
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ali (as personal representative of the late Mehboob Mohamed Abdul Gafoor Mohamed Mullah also known as Mehboob Mohamed Abdulgafoor and Mehboob Mullah) v Vescon Properties Limited & another", Case Analysis (2022). Civil Application 6 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/988/eng@2022-09-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.